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2017 DIGILAW 347 (ALL)

DHANKESH v. STATE OF U. P.

2017-01-25

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2017
JUDGMENT : (Delivered by Hon. B.K. Narayana, J.) 1. This criminal appeal has been preferred by the appellant Dhankesh against the judgment and order dated 15.2.2012 passed by the Additional Sessions Judge, Court no.6, Meerut in Session Trial no. 1335 of 2007, Case Crime no. 515 of 2007 (State vs. Dhankesh), under Section 302/201 I.P.C., Police Station-Kithore, district-Meerut, by which the appellant has been convicted and sentenced to imprisonment for life together with fine of Rs. 10,000/- and in case of default of payment of fine, one year R.I. under Section 302 I.P.C. and 5 years R.I. along with fine of Rs. 5,000/- and in case of default of payment of fine, 6 months additional imprisonment under Section 201 I.P.C. 2. Both the sentences were directed to run concurrently. 3. Briefly stated the prosecution case as spelt out by PW1 Ishwar Pal Singh in written report (Ext.Ka-1) lodged by him on 23.10.2007 at about 3:05 a.m. at police station-Kithore, district-Meerut and as later testified by the prosecution witnesses is that his son Ravi (deceased) aged about nineteen years had gone to operate the tube well on the date of the incident at about 10 p.m on resumption of power supply. Around midnight at about 12 hours pile of cow dung cakes of Rajpal, son of Bhartu caught fire, on which hue and cry was raised. Upon hearing the noise PW1 complainant, Ishwar Pal Singh, PW2 Suraj Pal Singh, PW3 Daya Ram and large number of villagers ran towards pile ofcow dung. On going towards tube well PW1 complainant, Ishwar Pal Singh found that the bed of his son inside the room of tube well which was locked from outside was unoccupied. Smell of burning human flesh emanating from the pile of cow dung cakes made the complainant suspicious and after the burning cow dung cakes were removed with the help of sticks, he found underneath the burning pile, burning dead body of his son along with one burnt bed sheet, blood stained cap and slippers of appellant Dhankesh who after stabbing his son with a knife had thrown him alive in the burning pile. About four or five days before the incident appellant Dhankesh had beaten his son Ravi and when the complainant had confronted him, Dhankesh had told him that his son used to tease his niece. 4. About four or five days before the incident appellant Dhankesh had beaten his son Ravi and when the complainant had confronted him, Dhankesh had told him that his son used to tease his niece. 4. On the basis of written report of the incident (Ext.Ka-1), case crime no. 515 of 2007 was registered against the appellant, Dhankesh under Section 302/201 I.P.C. Chek F.I.R. (Ext.Ka-18) was prepared by PW7 Mukesh Kumar, Head Moharrir, who had also recorded the necessary G.D. entry (Ext.Ka-19). The inquest on the dead body of the deceased, Ravi was conducted by PW5 S.I., Anang Pal Singh who prepared the inquest report of the deceased (Ext.Ka-9) and other documents (Ext.Ka-10 to Ext.Ka-14). On the same date he seized one cap, one pair of slippers from the place of incident which according to the people present there belonged to Dhankesh and prepared its recovery memo (Ext.Ka-2). He also took possession of ash, half burnt pieces of bed sheet, plain and blood stained earth, 'Parchajat' half burn cloth & blood stained 'Pant' from the place of incident and prepared recovery memos (Ext.Ka-3, Ext.Ka-4, Ext.Ka-5 & Ext.Ka-6). On the same date the Investigating Officer also got blood stained 'Garasa' allegedly used by the appellant Dhankesh in committing the murder of Ravi recovered from a heap of garbage by the appellant himself and prepared its recovery memo (Ext.Ka-7). The postmortem of the dead body of the deceased was conducted by PW4 Dr. S.P. Singh on 21.01.2010 at 3:30 p.m. who prepared his postmortem report (Ext.Ka-8). PW4 Dr. S.P. Singh noted following antemortem injuries on the dead body of the deceased :- (1) incised wound of size 8cm x 3cm x bone and brain deep - Transversely place forehead underneath bone cut. (2) incised wound of size 5cm x 1.5cm x bone deep. Transversely placed on middle of neck. (3) incised wound of size 7cm x 2cm x bone deep left side face near upper lip region. (4) incised wound of size 3cm x 2.5cm over expand of right Tibia bone, just above A.J. Level. Muscle tissue of right leg is burnt, right foot is missing. 5. According to him the deceased had died as a result of antemortem injuries sustained about half or one day before. (4) incised wound of size 3cm x 2.5cm over expand of right Tibia bone, just above A.J. Level. Muscle tissue of right leg is burnt, right foot is missing. 5. According to him the deceased had died as a result of antemortem injuries sustained about half or one day before. The investigation of the case was entrusted to PW7 Mukesh Kumar who after completing the same submitted charge sheet against the appellant Dhankesh under Section 302/201 I.P.C. 6. Since the offence mentioned in the charge sheet (Ext.Ka-17) was triable by the court of Session, the case was committed for trial of the accused to the Sessions Judge, Meerut, where it was registered as S.T. No. 1335 of 2007 and made over for trial to the court of Additional Sessions Judge, court no. 6, Meerut. 7. Learned Additional Sessions Judge, Meerut after hearing the accused on the point of charge, framed charge under Section 302/201 I.P.C. The appellant pleaded not guilty and claimed trial. 8. The prosecution in order to prove its case examined as many as seven witnesses namely, PW1 Ishwar Pal Singh, PW2 Suraj Pal Singh, PW3 Daya Ram, PW4 Dr. S.P. Singh, PW5 A.P. Singh, PW6 Inspector, Naresh Chandra Verma and PW7 Constable Mukesh Kumar. 9. The appellant in his examination under Section 313 Cr.P.C. denied the prosecution case and stated that the prosecution witnesses had given false evidence against him and made a prayer that he may be permitted to cross-examine them. 10. The learned Additional Sessions Judge after considering the submissions advanced before him by learned counsel for the parties and scrutinizing the evidence on record convicted the appellant under Section 302/201 I.P.C. and awarded the aforesaid sentence to him. 11. 10. The learned Additional Sessions Judge after considering the submissions advanced before him by learned counsel for the parties and scrutinizing the evidence on record convicted the appellant under Section 302/201 I.P.C. and awarded the aforesaid sentence to him. 11. It has been submitted by learned counsel for the appellant that the prosecution having failed to prove by any cogent and reliable evidence that the articles allegedly recovered from near the place of occurrence namely, cap ('topa'), slippers, chadar & cloth, Parchajat, half burnt clothes and blood stained 'pant' belonged to the appellant, the conviction of the appellant recorded by the trial court after holding the appellant to be the owner of the aforesaid articles on the basis of bald statements made by the prosecution witnesses in their evidence recorded during trial to the effect that the articles found near the place of occurrence belonged to appellant, uncorroborated by any other substantive evidence, can not be sustained and is liable to be set aside. 12. He next submitted that the prosecution has further failed to prove by any cogent evidence that the crime weapon, 'gadasa' was either got recovered by the Investigating Officer by the appellant from the heap of garbage near the place of occurrence or the same was used by the appellant in stabbing the deceased. The witness of recovery of crime weapon PW3 Daya Ram having denied in his evidence that the crime weapon was recovered by the appellant in his presence, the only irresistible inference which follows is that the recovery of the crime weapon allegedly at the behest of the appellant was fabricated by the police with the object of nailing him. He further submitted that the prosecution having miserably failed to establish the circumstances on which the appellant's conviction has been illegally based by the trial court by any clinching or reliable evidence and in the absence of circumstances clearly established such chain of event which unmistakably point out the guilt of the appellant and leaving no room for any other inference, the prosecution case based upon such circumstantial evidence is bound to fail. He has also submitted that if a case is based upon circumstantial evidence, motive assumes great significance and in the instant case it has not come out from any evidence whatsoever that the appellant was enmical towards the deceased. He has also submitted that if a case is based upon circumstantial evidence, motive assumes great significance and in the instant case it has not come out from any evidence whatsoever that the appellant was enmical towards the deceased. The incident from which according to the prosecution the motive to commit the ghastly crime by the appellant emitted, even if it is assumed for the sake of argument that any such incident had taken place, was not of such magnitude which could have led the appellant to commit the murder of the deceased. F.I.R. in this case is ante- timed. Such being the state of evidence the recorded conviction of the appellant and the sentence awarded to him can not be sustained. He lastly submitted that in view of the submissions made by him, the impugned judgment and order is liable to be set aside. 13. Sri Sagir Ahmad, learned A.G.A. appearing for the State has submitted that in this case the prosecution depends on circumstantial evidence, which circumstantial evidence points out the complicity of the appellant in the offence of murder under Section 302 I.P.C. is a quite clinching and has been accepted to be fully reliable by the trial Judge. He has also submitted that the facts which have been established beyond all doubts are : (i ) The deceased was stabbed on his face and later thrown alive into the pile of burning cow dung cake and has died a homicidal death. (ii) The appellant had beaten the deceased Ravi 4-5 days before occurrence on account of his niece being teased by the deceased. (iii) Blood stained cap ('topa'), one pair of slippers, burnt pieces of bed sheet, half burn cloth and blood stained pant which were seized from the place of occurrence belonged to appellant and thereby proving his presence at the place of incident. (iv) Recovery of blood stained 'gadasa' by the appellant from a heap of garbage underneath which he had hidden the same after committing the murder. 14. Sri Sagir Ahmad next submitted that the time and place of incident and the manner of assault stood fully proved from the evidence adduced by the prosecution. The recorded conviction of the appellant does not suffer from any illegality, infirmity or perversity and the sentence awarded to him is based upon relevant considerations warranting no interference by this Court. 14. Sri Sagir Ahmad next submitted that the time and place of incident and the manner of assault stood fully proved from the evidence adduced by the prosecution. The recorded conviction of the appellant does not suffer from any illegality, infirmity or perversity and the sentence awarded to him is based upon relevant considerations warranting no interference by this Court. This appeal lacks merit and is liable to be dismissed. 15. We have heard learned counsel for the parties and scanned the lower court record. 16. The only question which arises for our consideration in this case is that whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubts or not. 17. In the present case the appellant was tried and convicted for having committed the murder of Ravi, son of PW1 complainant, Ishwar Pal Singh on 22.10.2007 after 10:30 P.M. but before the midnight by stabbing him and then throwing him into a burning pile of cow dung cakes. 18. Admittedly no one had seen the appellant committing the murder of the deceased and his conviction in the present case is based upon certain pieces of circumstantial evidence and we have to see if those circumstances bring home the case of the prosecution. 19. We now consider these circumstances which had weighed with the trial court; (i ) The deceased was stabbed on his face and later thrown alive into the pile of burning cow dung cakes and has died a homicidal death. (ii) The appellant had beaten the deceased Ravi 4-5 days before occurrence on account of his niece being teased by the deceased. (iii) Blood stained cap ('topa'), one pair of slippers, burnt pieces of bed sheet, half burn cloth and blood stained pant which were seized from the place of occurrence belonged to appellant and thereby proving his presence at the place of incident. (iv) Recovery of blood stained 'gadasa' by the appellant from a heap of garbage underneath which he had hidden the same after committing the murder. 20. So far as the place of occurrence, probable time of death of the deceased after being stabbed and thrown into the burning pile of cow dung cakes and the manner of assault are concerned there is no challenge to the same by the learned counsel for the appellant. 20. So far as the place of occurrence, probable time of death of the deceased after being stabbed and thrown into the burning pile of cow dung cakes and the manner of assault are concerned there is no challenge to the same by the learned counsel for the appellant. Place of incident according to the FIR and the testimony of three eye witnesses was near the tube well and according to PW4 Dr. S.P. Singh who had conducted the postmortem of the dead body of the deceased, the deceased had died about half or one day before as a result of antemortem injuries found on his dead body. Considering the fact that the postmortem on the deceased's dead body was conducted at about 3:30 p.m., the possible time of death according to the medical evidence corroborates the time of death mentioned in the first information report which is around midnight. As regards the manner of assault the prosecution has come up with a categorical case that the deceased before being thrown into the burning pile of cow dung cakes was stabbed with 'gadasa'. The manner of assault as spelt out in the F.I.R. stands fully corroborated from the medical evidence on record. 21. The two material questions which arise for our consideration in this case in which the conviction of the appellant is based upon circumstantial evidence inter- alia are that "whether all the circumstances relied upon by the prosecution are established by clinching evidences and such incriminating circumstances fully established by clinching and reliable evidence, form a chain of events from which the only irresistible conclusion can be drawn is about the guilt of the accused and no other hypothesis is possible "and whether the prosecution has been able to prove by any cogent evidence the motive for the appellant to commit the murder of the deceased. 22. We have already noted there is no direct evidence on record indicating that the deceased was either seen with the appellant before or after the occurrence or the appellant had stabbed the deceased with 'gadasa' and then thrown him into the burning pile of cow dung cakes. 23. 22. We have already noted there is no direct evidence on record indicating that the deceased was either seen with the appellant before or after the occurrence or the appellant had stabbed the deceased with 'gadasa' and then thrown him into the burning pile of cow dung cakes. 23. The learned trial court has proceeded to convict the appellant for the murder of the deceased on the premise that the prosecution had proved by cogent evidence that half burnt clothes , bed sheet, cap and a pair of slippers which were recovered from the place of occurrence and which had stains of blood belonged to the deceased and the recovery of articles belonging to the appellant from and near the place of occurrence were very strong incriminating circumstances which proved his presence at the place of occurrence at the time of incident and indicated that he had committed the murder of the deceased. 24. According to the prosecution the motive for committing the murder of the deceased by the appellant was the enmity between the two enmating from the fact that the deceased used to tease his cousin sister and four or five days before, the appellant had beaten up the deceased for the same reason. It is true that all the three witnesses have deposed about the incident which had taken place 3-4 days before the occurrence but none of them have stated that they had witnessed the incident of beating. Even PW1 deposed on page 12 of the paper book that his son Ravi had complained to him that appellant had beaten him and when he had enquired from the appellant Dhankesh why he had beaten his son, he told him that he has used to tease his niece Teena. Admittedly the aforesaid incident was not reported to the police and there is no reliable evidence on record that deceased was actually beaten up by the appellant a few days before the occurrence. Even otherwise it is not the case of prosecution that deceased persisted with the teasing Teena, the niece of the appellant, even after he was beaten up four or five days before the occurrence which led to his murder by the appellant, hence we have no hesitation in holding that the prosecution has failed to prove by any reliable evidence the motive attributed to the appellant for committing the murder of the deceased. Thus, we do not find that the prosecution has succeeded in proving the motive attributed to the appellant for committing the murder of the deceased. 25. We have very carefully scanned the statements of three witnesses who were produced by the prosecution during trial for proving the material circumstances namely, the articles found at and near the place of occurrence belonged to the appellant relied upon by the prosecution for proving the guilt of the appellant and we are constrained to observe that the three witnesses of fact namely, PW1 Ishwar Pal Singh, PW2 Suraj Pal Singh and PW3 Daya Ram have made mere bald statements in their testimonies that clothes, pieces of half burnt bed sheet, pant, cap ('topa') and one pair of slippers found near the place of occurrence belonged to the appellant as they had seen him wearing the same. Their statements are not corroborated by any substantive evidence. Moreover the articles which were recovered from the place of occurrence are commonly used and easily available in the market and there was nothing special or unusual about those articles on the basis of which their ownership could be fastened with the appellant alone to the exclusion of all others. The aforesaid fact was admitted by PW3 Daya Ram in his evidence in paragraph 6 on page 34 of the paper book, in which he has deposed as here under:- ^^tSls Vksik] [ksl] pIiy cjken gq, gSa oSls lkeku ckt+kj esa fey tkrs gSaA** 26. Similarly PW1 Ishwar Pal Singh on page 34 of the paper book has stated that ^^eSusa o xkao ds lHkh yksxksa us igpkuk fd og pIiy] Vksik o pknj /kuds'k dh gSA eSusa mUgsa /kuds'k dks igusa ns[kk FkkA eSusa bu pht+ksa dks [kjhn dj /kuds'k dks ugha fn;k Fkk vkSj u mlds }kjk [kjhns tkrs le; eSa mlds lkFk x;k FkkA** 27. The articles found at and near the place of incident could have belonged to anyone and in our opinion in the absence of any evidence showing that the appellant was seen with the deceased before or after the occurrence or at the crime scene, the articles recovered from near the place of occurrence can not be held to be those of the appellant. 29. 29. Moreover the discovery of crime weapon from under a heap of garbage at the behest of appellant as alleged in the F.I.R. stands totally falsified from the statement of PW3 Daya Ram, the witness of recovery of crime weapon in paragraph 6 of his evidence on page 34 of the paper book deposed that ^^xaMklk esjs lkeus lhy ugha fd;k x;k FkkA xaMklk esjs lkeus cjken ugha fd;k x;k FkkA izn'kZ d6 ij gLrk{kj njksxkth us xkao esa gh djk;s FksA bu QnksZa esa D;k fy[kk gS eS ugha tkurkA eSa i<+k fy[kk ugha gwaA** 30. The prosecution having failed to prove by any cogent and reliable evidence that the blood stained 'gadasa' with which the appellant had allegedly stabbed the deceased was recovered on his pointing out, no adverse inference can be drawn against the appellant on the basis of the report of the forensic expert on the record stating that human blood was found on the crime weapon, 'gadasa', for his failure to furnish any explanation in this regard. 31. It has also been submitted by learned counsel for the appellant that the first information report is an ante timed document which has been prepared after due deliberation which is evident from the evidence of PW5 S.I. A.P. Singh, who had deposed in 8th line of page 42 of the paper book that ^^ eSa ?kVuk LFky ij jk=h esa yxHkx ikSus rhu cts igqapk FkkA The arrival of the police at the place of incident much before the lodging of the F.I.R. is a very strong circumstance which gives rise to an inference that the written report in this incident was prepared in consultation with the police. The aforesaid circumstance stands further proved from the evidence of PW1 Ishwar Pal Singh, who on page 21 of the paper book has deposed that "the F.I.R. of the incident was scribed by PW2 Suraj Pal Singh on the dictation of 'Darogaji'. "" 32. Record further shows that PW2 in the last two lines of his deposition on page 27 of the paper book has deposed that he had reached the police station from Medical College on being called by the police at about 10 A.M. where he had scribed report at the instance of PW1. 33. "" 32. Record further shows that PW2 in the last two lines of his deposition on page 27 of the paper book has deposed that he had reached the police station from Medical College on being called by the police at about 10 A.M. where he had scribed report at the instance of PW1. 33. Thus, the irreconcilable discrepancies in the testimonies of PW1 and PW2 with regard to the identity of the person on whose dictation PW2 Suraj Pal Singh had scribed the written report of the incident (Ext.Ka-1) and the time at which the written report was presented not only totally shatters the reliability of the F.I.R. but also proves that the F.I.R. in this case was not actually lodged at the time mentioned in the G.D. and the check F.I.R. and is ante-timed. The principles how circumstance be considered are well settled and summed up in Sharad Birdichand Sarda v. State of Maharashtra reported in (1984) 4SCC 116 as follows :- "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade and another v. State of Maharashtra where the observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 24. We now consider the circumstances which have weighed with the Courts below:- a] The appellant was the only male member residing with his mother, wife and five daughters. b] The house in question which opened in a gali was bolted from inside on the fateful night. c] The appellant was found lying unconscious in a room where there were five dead bodies with another dead body in the adjoining room. d] A knife, which could possibly have caused injuries to the deceased, was lying next to his left hand. e] His clothes - "lungi" to be precise, were found to be having blood stains with blood of human origin. f] He had offered no explanation how the incident had occurred and as such a presumption could be drawn against him under Section 106 of the Evidence Act. In the face of these circumstances, according to the Courts below, the only possible conclusion or hypothesis could be the guilt of the appellant and nothing else. f] He had offered no explanation how the incident had occurred and as such a presumption could be drawn against him under Section 106 of the Evidence Act. In the face of these circumstances, according to the Courts below, the only possible conclusion or hypothesis could be the guilt of the appellant and nothing else. The absence of any explanation on part of the appellant was taken as an additional link in the chain by the High Court." 34. The Apex Court in the case of Jaharilal Vs. State of Orissa reported in (1991) 3 SCC 27 has held as here under : "The principle for basing a conviction on the basis of circumstantial evidence has been indicated in number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstance so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjuncture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out all reasonable likelihood of the innocence of the accused. It has also been indicated that when important link goes, the chain of circumstances get snapped and the other circumstances cannot, in any manner establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by the Apex Court that there is a long mental distance between "may be true", "must be true", and the same denotes conjunctures from sure conclusions tested on the touchstone of the aforesaid principles the circumstantial evidence in this case does not appear to be sufficient for conviction of the appellant for the offence under Section 302 I.P.C." 35. The evidence adduced by the prosecution for proving the circumstances which weighed with the trial court for proving the guilt of the appellant on being tested by us on the touchstone of the principles culled out by the Hon'ble Apex Court in the cases of Sharad Birdichand Sarda (supra) and Jaharilal (supra), appears to be neither clinching nor reliable. Apart from the first circumstance the prosecution has not been able to prove all the remaining three circumstances by any cogent evidence. Conclusive or specific evidence is lacking in this case to actually pin down or hold the appellant as the person who has committed the murder of the deceased. It is apparent that the prosecution has failed to establish the facts which can be said to be consistent only with the hypothesis of the guilt of the accused. 36. Thus upon a wholesome appraisal and careful scrutiny of the evidence on record, we find that the prosecution has not been able to prove its case against the appellant beyond all reasonable doubts. The prosecution has failed to prove by any cogent evidence that the articles recovered from and near the place of occurrence belonged to the appellant. The prosecution has also failed to establish by any reliable evidence that the crime weapon was recovered by the appellant as PW3, as the only independent witness of recovery of crime weapon produced by the prosecution during trial failed to support the recovery by deposing that the crime weapon 'gadasa' was not recovered in his presence. 37. For the aforesaid reasons, we are of the view that learned trial court manifestly erred in convicting the appellant for the offence under Section 302 I.P.C. and awarding life sentence to him. 38. The appeal is accordingly allowed. The impugned judgment and order dated 15.2.2012 passed by the Additional Sessions Judge, Court no. 6, Meerut in Session Trial no. 1335 of 2007, Case Crime no. 515 of 2007 (State vs. Dhankesh), under Section 302/201 I.P.C., Police Station-Kithore, district-Meerut is hereby set aside. The appellant is acquitted of all the charges framed against him. 39. The appellant Dhankesh is in jail. He shall be released forthwith, if he is not wanted in any other case. 40. There shall be however no order as to costs.